Intellectual Property

Spokesmen for the MPAA, RIAA and several other content industry companies recently issued a statement of support for the new “Stop Airline Piracy Act” or SAPA, now before congress.

SAPA seeks to address the massive tide of copyright infringing material flowing into the USA on commercial airlines and delivery services. Today in China and many other countries, bootleg DVDs, CDs and software disks are being manufactured in bulk, and sold to visitors on the streets of these cities in illicit malls. Then, these visitors fly back to the USA with the pirate disks in their suitcases, taking them into the USA. Other Americans are ordering these pirate DVDs and having them shipped via both airlines and other shippers directly to their homes.

SAPA addresses this problem by giving content owners tools to cut down this pirate flow. A content owner, once they learn of an airline or shipping service which is regularly and repeatedly bringing pirated material into the country, can file claims alleging the presence of this infringement. The bill allows them to shut off the flow of money, traffic and customers to the airlines, by getting US companies to stop directing people to the airlines, and stopping payment services from transferring money to them.

“Last month, we worked with customs and border patrol to inspect planes coming into LAX from overseas,” said Pearl Alley, a spokesperson for the MPAA. “We found that every single plane of an unnamed airline had pirated material in passenger bags or in the hold. Not just a few planes, every single plane. Most planes had multiple pirated products, including DVDs and CDs, and files on laptops and music players.” Customs is able to seize any laptop or music player coming into the country for any reason and copy its drive to see what’s on it, according to CBP officials.

“These airlines and shippers are enabling and facilitating infringement. This has got to be stopped, and SAPA will stop it,” said Alley.

Under SAPA, an airline alleged to have been regularly carrying in pirated material can be blacklisted. Travel agents will be forbidden from booking passengers on the airline. Travel web sites can be ordered not to list flights or even the existence of the airline. Phone book and Yellow page companies can be ordered to remove any listings for the airline, and in some cases, phone switches can be ordered to not complete calls directed at airline phone numbers. Travel review books and sites can be ordered edited to delete mention of the airline or recommendations to fly on it.

To shut off the money flow, an accusation of alleged infringement under SAPA can result in an order to Visa, Mastercard, Paypal and other financial processors to not accept payments for the airline or shipping company. “They may be overseas, but we can stop them from destroying American jobs with tools we have at home,” said Senator Dianne Feinstein (D-CA), co-sponsor of the senate version of the bill.

Airports can also be prohibited from allowing the planes to land. However, planes in the air can file a counter-notice within 5 days of a claim, providing they subject themselves to US jurisdiction and agree to be liable if they are found to have copyright material in their holds. Aircraft which can’t file a counter notice are free to turn around on approach to LAX and return over the Pacific, but may not land at any airport in a country which has signed the Anti-Counterfeiting Trade Agreement with the USA.

“Legitimate Airlines, ones that are not carrying in pirated material every day, will not be harmed by this act, because of the counter-notice provision. In addition, if a rightsholder files a false claim, and there are no copyright violations on board the plane, the airline has a right to sue for damages over misuse of the act — so it’s all safe and does not block legitimate trade,” said Alley.

Several airlines, travel agencies and travel sites have, not surprisingly, filed opposition to this bill, but it is supported by a broad coalition of US job creators in Hollywood and Redmond, as well as domain name site GoDaddy.

Yesterday, Don Henley (of the Eagles) penned an editorial in USA Today supporting the Protect IP Act (PIPA) which has serious free speech implications and turns web sites into copyright police. Don called out both the EFF (of which I am a Director) and Google (which is a consulting client of mine) so I have this whimsical response for him:

Take it Easy, Don. There’s a New Kid in Town, and it’s called the
Internet. Get Over It. I Can’t Tell you Why, but in The Long Run,
there isn’t going to be a Heartache Tonight. One of these Nights I hope
you’ll understand that for search engines to Take it To the Limit,
they can’t be forced to police every search result.

Internet companies
only grow when living Life in the Fast Lane, able to operate, innovate
and design products without needing to check for permission from the
music industry. If every time you wrote a song you had to worry about
what every user who plays it and every store that sells it might do with
it, you would lose your Peaceful, Easy Feeling quickly. Big companies
might run filters, but if the small ones had needed to they would be
Already Gone.

The Best of My Love,

Brad Templeton, EFF

PS: Henley really is a great musician, and I do understand his frustration with people who don’t pay him for his work. But click the link above for EFF’s explanation of why this sort of approach isn’t really going to help musicians and will do real damage to the way people use computers and the internet.

I never combined the two together, however. In the citizen examiner approach, when you apply for a patent you are also put into a pool of available experts in your field to assist examiners with other patents in the field. You need to do this several times (and get anonymously graded by your peers as having done a decent job) in order to get the patent you applied for.

While this helps the patent examination in so many ways, by providing an automatically scaling pool of skilled labour, I had not addressed how to deal with the novelty test.

I propose that when filing a patent, first the applicant must file a clearly written statement of the problem being solved by the patent. This would be public, and citizen examiners would be asked to consider it and see if any obvious solutions come to mind to them as those skilled in the art. In addition, they would grade the problem statement for clarity.

When the actual filing is disclosed, a second review would be done both by the examiner, an the citizen examiners as to whether the claimed invention really does solve the problem, and whether it had been a clear statement of the problem and not an attempt to obfuscate. I already plan for the citizen examiners to grade the patent itself on how clearly it teaches the invention. Patents which do not have cohesive problem statements and clear teaching of the invention would be returned in an office action for revision.

The idea behind the problem statement is a test both for obviousness and novelty of the problem. In many cases, experts in the field will come up with proposed solutions to the problem quickly. If they come up with the invention-about-to-be-disclosed, then it’s clear that it was obvious to one skilled in the art. If nobody comes close to the invention, it is evidence that it is not obvious, though there would still be general judgement of that, as well as prior art searching by examiners, citizen examiners and the public.

Today, patent lawyers earn their keep in part by writing patents in non-clear ways, to make them hard to find and understand. That is against the goal of the patent system, which is to reward those who disclose their inventions, teach how to build them and leave them after 17 years as a legacy to the world. While any one examiner may not make a good decision, a panel of experts in a field can provide some solid evidence on whether the problem is hard and the invention is novel.

Getting such proposals into patent reform is hard. Big patent holders want to make it easy to build up their patent portfolios. Many would fight meaningful reform like this. But perhaps there is a way to get it kickstarted. It might be interesting to see a web site where new patents are put forward and examined by ordinary citizens that care. Examiners could of course look at that, but they would not be obligated to. There are so many patents that a lot would pass by without attention. There are sites that report on new patents, but what we perhaps need is a site like “reddit” or “digg” for patents which takes the whole patent inflow and lets people vote up patents of interest for examination and comment by others. The most interesting ones would get more attention and more people searching for prior art and commenting. If a little money was involved they might even get prizes, though that would take a wealthy patron willing to spend money for patent reform.

To sum up the proposed patent process:

Applicant files/publishes “statement of problem.” Also declares the discipline/areas of expertise.

The public, and a set of citizen examiners chosen from the pool in that subject area write comments on the problem and propose solutions over the course of a few weeks.

The patent filing is studied by the examiner. She picks some suitable citizen examiners without apparent conflict of interest, as well as one likely competitor, if available. Chosen examiners agree or beg off, if they beg off, alternates are selected.

Examiner and citizen assistants consider the patent, how well it is written and do searches for prior art. The “adversarial” examiner does only prior art search.

The patent is considered in the light of prior art. Novelty and how well it addresses the pre-stated problem are judged, as well as clarity. Obfuscated patents, as judged by the examiner based on views of the assistants, are rejected in office actions. The patents can be re-filed but the problem statement can’t.

If a patent is found to be clear, novel and well tied to the problem, and non-obvious, including that nobody who examined the problem came up with too similar a solution, the patent can be granted.

The examiner and other citizen examiners (including some who did not work on this particular patent) grade the work of the citizen examiners, to assure they were thorough, diligent and honest. Those who were earn a credit towards their obligation.

Re-examination

Citizen examiners are almost unlimited, in that we can ask each one to do multiple jobs to get their patent, within reason. Small inventors can get less duty than large ones, and anybody (but particularly large companies) can have another qualified expert do the work if the main inventor is too important. But I imagine the job as being about 2-3 days of work, researching, reading and commenting, and 5x of that is pretty tolerable for somebody wanting a patent.

As such we could also, more slowly, put citizen examiners on to re-examining other patents that are challenged. We would not revoke patents that met the rules of their day, but if further examination shows they had prior art or documented obviousness, that should be considered.

Some time earlier, an iPhone app developer put together an iPhone app which would display the EFF blog feed. This wasn’t an EFF effort, but the EFF gave them permission to put the logo in the app.

Recently, Apple’s App Store team evaluated the app. The pulled up the EFF blog feed, and played the video, presumably using the built in YouTube playing App which Apple provides for the iPhone. And in the subtitles I wrote, at one point when Hitler was particularly angry, the fake text had him say “fucking.” This is quite mild compared to most of the Downfall parodies on YouTube, and indeed many other videos on YouTube. I debated taking it out, but it’s appropriate for the character to be using strong angry language at that point in his rant. And it’s funny to see Hitler swear in English so I left it in.

The App Store team — dare I call them the Apple App Store content Nazis, or is that too meta? — declared the app unsuitable for the iPhone store. Note that the app doesn’t contain any dirty words, and the EFF blog rarely contains them, and didn’t contain them in this case, only pointing to the video. Of course, the EFF as a free speech organization is not about to declare its blog will be free of bad words in the future, though they are a fairly unlikely event.

Yet this, it seems, is what Apple is protecting its users from. Apple claims that it needs to control what Apps you can install on an iPhone. You need to “jailbreak” the iPhone to install other apps, and Apple says you don’t have the right to do that. Sometimes such walled gardens start off with what you may agree are good intentions, such as stopping malicious apps, or assuring a quality experience with a product. But always, it seems, it devolves to this.

You can also read the EFF Deep Links article on this bizarre denial. Apple seems to have become a parody of itself. How long before we see a Downfall clip where Hitler is an Apple app store evaluator, or a fake Steve Jobs? Of course, that had better not contain any upsetting words, even in links.

New Update, April 2010: Yes, even this parody video has been taken down though the YouTube Content-ID takedown system — just as my version of Hitler says he is going to do at the end. I filed a dispute, and it seems that now you can watch it again on YouTube, at least until Constantin responds as well as on Vimeo. I have a new post about the takedown with more details. In addition, YouTube issued an official statement to which I responded.

Unless you’ve been under a rock, you have probably seen a parody clip that puts new subtitles on a scene of Hitler ranting and raving from the 2004 German movie Downfall (Der Untergang). Some of these videos have gathered millions of views, with Hitler complaining about how he’s been banned from X-box live, or nobody wants to go to Burning Man, or his new camera sucks. The phenomenon even rated a New York Times article.

It eventually spawned meta-parodies, where Hitler would rant about how many Hitler videos were out on the internet, or how they sucked. I’ve seen at least 4 of these. Remarkably, one of them, called Hitler is a Meme was pulled from YouTube by the studio, presumably using a DMCA takedown. A few others have also been pulled, though many remain intact. (More on that later.)

Of course, I had to do my own. I hope, even if you’ve seen a score of these, that this one will still give you some laughs. If you are familiar with the issues of DRM, DMCA takedowns, and copyright wars, I can assure you based on the reviews of others that you will enjoy this quite a bit. Of course, as it criticises YouTube as well as the studio, I have put it on YouTube. But somehow I don’t think they would be willing to try a takedown — not on so obvious a fair use as this one, not on the chairman of the most noted legal foundation in the field. But it’s fun to dare them.

(Shortly I may also provide the video in some higher quality locations. I do recommend you click on the “HQ” button if you have bandwidth.) read more »

Making of the Video, Legally

It’s been a remarkably dramatic year at the EFF. We worked in a huge number of areas, acting on or participating in a lot of cases. The most famous is our ongoing battle over the warrantless wiretapping scandal, where we sued AT&T for helping the White House. As you probably know, we certainly got their attention, to the point that President Bush got the congress to pass a law granting immunity to the phone companies. We lost that battle, but our case still continues, as we’re pushing to get that immunity declared unconstitutional.

We also opened a second front, based on the immunity. After all, if the phone companies can now use the excuse “we were only following orders they promised were legal” then the people who promised it was legal are culpable if it actually wasn’t. So we’ve sued the President, VP and several others over that. We’ll keep fighting.

But this was just one of many cases. The team made up a little musical animation to summarize them for you. I include it here, but encourage you to follow the link to the site and see what else we did this year. I want you to be impressed, because these are tough-times, and that also makes it tough for non-profits trying to raise money. I know most of you have wounded stock portfolios and are cutting back.

But I’m going to ask you not to cut back to zero. It’s not that bad. If you can’t give what you normally would like to give to make all this good work happen, decide some appropriate fraction and give it. Or if you are one of the few who is still flush, you may want to consider giving more to your favourite charities this year, to make up for how they’re hurting in regular donations.

The work the EFF does needs to be done. You need it to be done. You have a duty to protect your rights and the rights of others. If you can’t do the work to protect them yourself, I suggest you outsource it to the EFF. We’re really good at it, and work cheap. You’ll be glad you did.

Among many patent reform proposals it is common to have a desire for better examination, and more detection of prior art and obviousness. But the patent office only has so much money for so many examiners.

So here's a simple solution. If you want to apply for a patent, you must put in some time, as an expert in your field, examining other patent applications, searching for prior art and giving opinions on the obviousness. Alternately, this duty could be given only to those who actually are granted patents, to make more sure they are "skilled in the art" of their fields.

Of course, such crowdsourced examiners would have biases. They would be expected to make a sworn statement about their biases. Making a false statement could have implications on their own patents as well as the usual penalties.

Those biased against the patent would mostly hunt for prior art -- in fact they would make the best hunters. Those unbiased could make better opinions of obviousness.

Like regular patent fees, this could be biased for small inventors. (Small inventors pay lower patent fees and get some better treatments.) Large companies might have to volunteer more time from their staff, or small inventors might get reductions in patent fees in exchange for good work. Peers would examine the work of other peers to keep them honest and to rate the quality of it. And of course, unbiased patent examiners and appeal boards would still have the final, objective say.

Other volunteers could also participate in prior art searches. But with the system described above, there should be no shortage of labour. And as the number of patents goes up, the system naturally increases the labour available to do the legwork.

Many people feel there's a patent law crisis underway. The Patent office has been granting patents that either seem obvious, or aren't the sort of thing that should be patented. Some advance that software shouldn't be patentable at all, just as mathematics is not patentable.

I don't go that far, for reasons I will explain. But I have found a common thread in many of the bad patents which could be a litmus test for telling the bad from the good.

Patent law, as we know, requires inventions to be novel and not obvious to one skilled in the art.

But the patent office has taken too liberal a definition of novel. They are granting patents when the problem is novel, and the filer is the first to try to solve it. As such their answer to the new question is novel.

The better patents are ones that solve older problems.

Amazon was one of the earliest internet shopping operations. So of course they were among the first to look hard at the UI for that style of shopping, and thus were first to file an invention called one-click-buy. But one-click-buy was really just an obvious answer to a new problem. The same applies to XOR cursors, browser plug-ins, and streaming audio and video.

Some patents, however, are deserving. I remember seeing CS professors give lectures in the mid-70s about how Huffman coding was provably the be best form of data compression, even after Ziv and Lempel published their paper on their compression algorithms. They took a very old problem and came up with a new answer. Key management in cryptography was a 2000 year old problem, and Diffie, Hellman and Merkle came up with a bold new answer. (As did cryptographers at British intelligence, but I still don't think this makes this obvious.)

While it would not solve every problem, I think if patent examiners asked, "How long has somebody been trying to solve the problem this invention solves?" and held off patents when the problem was novel, or at least applied more scrutiny, we would have a lot less problem with the patent system.

Many people simply say, "we should not allow patenting of software."

This has always bothered me. To me, software and hardware are the same thing, and the rest of the world is slowly realizing that. The virtual world is the real world, and having one law for that done in software and another for that done in hardware is a poor course to take. read more »